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STATE v. JORDAN—CONCURRENCE

ESPINOSA, J., concurring in part and concurring in

the judgment. I agree with and join part II of the majority

opinion, which concludes that the actions of the defendant, Victor L. Jordan, Sr., were insufficient to sustain

his conviction of tampering with physical evidence. I

write separately because, although I agree with the

majority’s ultimate conclusion in part I that there was

no violation of the defendant’s due process right to a

fairtrial, I disagree with its analysis. Specifically, I agree

that, if we were to assume, without deciding, that there

was impropriety on the part of the prosecutor, any error

was harmless beyond a reasonable doubt. I believe,

however, that we should reach the issue of whether the

Appellate Court properly concluded that the prosecutor

acted improperly.

In this concurring opinion, I first explain that the

majority’s determination not to address the prosecutor’s duty under Brady v. Maryland, 373 U.S. 83, 83 S.

Ct. 1194, 10 L. Ed. 2d 215 (1963), and Napue v. Illinois,

360 U.S. 264, 79 S. Ct. 1173, 3 L. Ed. 2d 1217 (1959), is

based on an incorrect reading of the scope of the certified question. Second, and more importantly, I explain

that the majority’s failure to address the question of

whether the prosecutor acted improperly leaves standing the Appellate Court’s incorrect application of Napue

to the facts of the present case. And the incorrect legal

analysis of that court is a significant one, which should

be rectified by this court. Specifically, this appeal presents a somewhat unusual, but not rare, sequence of

events that implicates the doctrines set forth by the

United States Supreme Court in Brady v. Maryland,

supra, 87 (prosecutor’s duty to disclose exculpatory

evidence), Napue v. Illinois, supra, 269–70 (prosecutor’s duty to correct false or misleading testimony), and

Giglio v. United States, 405 U.S. 150, 154–55, 92 S. Ct.

763, 31 L. Ed. 2d 104 (1972) (extending Brady and

Napue doctrines to understandings or agreements witness has with state in exchange for testimony). That

is, when a prosecutor, at the outset, has disclosed both

to the defendant and the court the nature of any

agreements that have been offered to the state’s witnesses in exchange for their testimony, does the prosecutor have a duty to correct, in the presence of the

jury, any subsequent, misleading testimony offered by

those witnesses?

I conclude that because the prosecutor fulfilled his

duty pursuant to Brady when he informed both the

court and the defendant of the nature of the agreements

he made with the state’s witnesses, Herman Cordero

and Jennifer Campbell, in exchange for their testimony

he did not have a subsequent duty pursuant to Napue,

given the particular facts of the present case, to correct
the misleading testimony of those witnesses as to the

agreements. Accordingly, I concur.

I

CERTIFIED QUESTION

The majority suggests that the reason it does not

reach the issue of whether the Appellate Court properly

concluded that the prosecutor acted improperly is

because that issue is beyond the scope of the first certified question.1

I disagree. The first certified question

was limited to the following issue: ‘‘Did the Appellate

Court properly conclude that the prosecutor’s failure

to correct the misleading testimony of . . . Cordero

and . . . Campbell did not deprive the defendant of

his due process right to a fair trial?’’ State v. Jordan,

305 Conn. 918, 47 A.3d 388 (2012). I first observe that

even if the majority was correct that the issue is beyond

the scope of the certified question, it does not necessarily follow that this court would be unable to consider

this issue.2 This court has discretion to address issues

or claims not within the scope of the certified question

if it is in the interest of judicial economy; State v. Webster, 308 Conn. 43, 60 n.13, 60 A.3d 259 (2013); or if the

issue was briefed by the parties and addressed at oral

argument. Finan v. Finan, 287 Conn. 491, 498, 949 A.2d

468 (2008).3

The issue of whether the Appellate Court properly

concluded that the prosecutor acted improperly by violating his duty under Brady and Napue, however, falls

within the scope of the certified question, which

requires us to resolve whether the prosecutor’s failure

to correct the misleading testimony deprived the defendant of his due process right to a fair trial. That question

encompasses the entire due process inquiry, including

both impropriety and materiality. Specifically, because

the defendant must prevail on both prongs in order to

establish that the prosecutor’s actions have violated his

right to due process, the certified question necessarily

includes both the issue of whether the prosecutor’s

actions violated Brady and Napue and, if the answer

to that question is in the affirmative, whether the violation was material. Accordingly, the majority’s reading of

the certified question is unnecessarily narrow. Finally, I

observe that, because the Appellate Court addressed

in its opinion the issue of whether the prosecutor acted

improperly and because both parties have briefed that

issue and discussed it at oral argument, there is no risk

that the parties will be prejudiced by this court reaching

the issue. Therefore, the issue of whether the Appellate

Court properly concluded that the prosecutor acted

improperly is before this court.4

II

APPELLATE COURT’S INCORRECT CONCLUSION

SHOULD NOT BE LEFT STANDING

I also write separately because the majority’s failure
to address this issue leaves standing the incorrect conclusion of the Appellate Court that the prosecutor’s

actions were improper. This court has a duty both to

parties and to lower courts to clarify the law and to

correct any errors in interpretation made by the Appellate Court. In this concurring opinion, therefore, I

explain that because the prosecutor properly disclosed

the details of his agreements with Cordero and Campbell, as required under Brady, he did not have a duty,

pursuant to Napue, under the facts of the present case,

to correct the subsequent misleading testimony5 given

by these witnesses.

I begin by reviewing the Appellate Court’s discussion

of the defendant’s claim that the prosecutor violated

his due process right to a fair trial by not correcting the

misleading testimony given by Cordero and Campbell in

the presence of the jury. After addressing the threshold

issue of whether the defendant had waived the claim,6

and concluding that he had not done so because he had

‘‘attempted twice to draw out the presence of the plea

agreement from Cordero,’’ the court proceeded to the

merits of the defendant’s claim. State v. Jordan, 135

Conn. App. 635, 664, 42 A.3d 457 (2012). The court

concluded that the prosecutor’s initial disclosure of the

nature of the agreements with Campbell and Cordero

was inadequate in light of their subsequent misleading

testimony; id., 666–67; because ‘‘the jurors could well

have been left with the impression, created by Cordero’s

and Campbell’s testimony, that neither had any incentive to testify favorably for the state. Under these circumstances . . . the prosecutor had a duty to correct

the record before the jury.’’ Id., 667. Having concluded

that the prosecutor acted improperly, the Appellate

Court then applied the six factors set forth in State v.

Williams, 204 Conn. 523, 540, 529 A.2d 653 (1987), to

determine that the improper action did not deprive the

defendant of his due process right to a fair trial.7 The

court based its conclusion on the fact that there was

additional evidence beyond Cordero’s and Campbell’s

testimony that pointed to the defendant as the assailant,

that the prosecutor did not attempt to use the false

testimony, that the jury was aware of the status of

Campbell and Cordero as charged accomplices in the

case, and, additionally, that ‘‘the court instructed the

jury to carefully scrutinize their testimony on the basis

of this status.’’ State v. Jordan, supra, 667–68.

By holding that the prosecutor had a duty to disclose

the nature of his agreements with Cordero and Campbell in the presence of the jury, notwithstanding the

fact that he already had provided the defendant with

the information regarding the true nature of those

agreements, the Appellate Court went beyond the

requirements of both Brady and Napue. Brady sets out

the rule that ‘‘the suppression by the prosecution of

evidence favorable to an accused . . . violates due

process [when] the evidence is material either to guilt
or to punishment, irrespective of the good faith or bad

faith of the [prosecutor].’’ (Internal quotation marks

omitted.) Adams v. Commissioner of Correction, 309

Conn. 359, 369, 71 A.3d 512 (2013). A subset of the

Brady rule was established in Napue, which places an

obligation on the prosecutor to correct false or misleading witness testimony. Napue v. Illinois, supra, 360

U.S. 269–70. The duty to correct under Napue includes

the duty to correct a witness’ false testimony about any

understanding or agreement that the prosecutor and

the witness have made in exchange for the witness’

agreement to testify. Giglio v. United States, supra, 405

U.S. 154–55.

In order to understand why the prosecutor in the

present case did not have a duty to correct the misleading testimony of Cordero and Campbell, it is helpful

to view the facts of the present case in light of the

overarching purpose behind Brady and Napue, which

is to ensure the fair administration of justice and fair

dealing by the prosecutor. The United States Supreme

Court explained the limits of that purpose: ‘‘The Brady

rule is based on the requirement of due process. Its

purpose is not to displace the adversary system as the

primary means by which truth is uncovered, but to

ensure that a miscarriage of justice does not occur.

Thus, the prosecutor is not required to deliver his entire

file to defense counsel, but only to disclose evidence

favorable to the accused that, if suppressed, would

deprive the defendant of a fair trial . . . .’’ (Footnotes

omitted.) United States v. Bagley, 473 U.S. 667, 675,

105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985). The court further

explained in Bagley that ‘‘[b]y requiring the prosecutor

to assist the defense in making its case, the Brady rule

represents a limited departure from a pure adversary

model. The [c]ourt has recognized, however, that the

prosecutor’s role transcends that of an adversary: he

is the representative not of an ordinary party to a controversy, but of a sovereignty . . . whose interest . . . in

a criminal prosecution is not that it shall win a case, but

that justice shall be done.’’ (Internal quotation marks

omitted.) Id., 675 n.6. Additionally, the United States

Supreme Court has made clear that ‘‘[the prosecutor]

may prosecute with earnestness and vigor—indeed, he

should do so. But, while he may strike hard blows, he

is not at liberty to strike foul ones. It is as much his

duty to refrain from improper methods calculated to

produce a wrongful conviction as it is to use every

legitimate means to bring about a just one.’’ Berger v.

United States, 295 U.S. 78, 88, 55 S. Ct. 629, 79 L. Ed.

1314 (1935).

In the present case, the prosecutor’s actions were

perfectly in accordance with the principles underlying

Brady and Napue. Far from striking ‘‘foul’’ blows, the

prosecutor did everything that due process required.

Specifically, he had disclosed to the court and to the

defendant the nature of his agreements with both Cord-
ero and Campbell before they testified. He did not

attempt to hide the information or to act, in any way,

unfairly or dishonestly in his dealing with the defendant.

The prosecutor told the defendant and the court, on

the record: ‘‘And, just [s]o the record is clear, what I

said to [Cordero’s attorney] and what I said to [defense

counsel] about [Cordero’s] cooperation is that if he

testified we would bring his cooperation to the sentencing judge . . . when his case is disposed of. And that’s

the extent of the agreement.’’ Prior to Campbell’s testimony, the prosecutor again told the defendant and the

court, on the record: ‘‘[Campbell is] represented by

Attorney Auden Grogins and [I] made the same representation to her and her client as I did to . . . Cordero

and his [attorney], that their cooperation, if any, would

be brought to the attention of the sentencing judge at

the time [her] case is disposed of.’’ The prosecutor made

both of these disclosures outside of the presence of the

jury. This fulfilled his obligation under Brady to provide

the defendant with exculpatory information. Brady v.

Maryland, supra, 373 U.S. 87. It was then incumbent

upon the defendant to determine whether to use that

information. That is, once the witnesses gave misleading testimony during direct examination, the defendant had the option of using the Brady material that

the prosecutor had provided to him to impeach the

witnesses by questioning them about any consideration

they were promised in exchange for testifying. As a

practical matter, the prosecutor had no duty to correct

the misleading testimony by informing the defendant

of the true nature of his agreement with the witnesses—

he already had provided the defendant with that information. The only remaining question was, once the witnesses gave misleading testimony, whose duty was it

to correct that misleading testimony in the presence of

the jury?

The mistake in the Appellate Court’s reasoning was

that it imposed a duty upon the prosecutorthat properly

belonged to defense counsel. That is, after a prosecutor

has discharged his duty under Brady to provide a defendant with exculpatory information, the duty to place

that information in front of the jury is a duty owed to

the defendant by his counsel, not by the prosecutor.

The mere fact that a witness has testified in a misleading

manner, without more; see footnote 6 of this concurring

opinion; does not shift responsibility back to the prosecutor. The prosecutor has an obligation to ensure that

the defendant is aware of any false or misleading testimony at a time when the defendant can use the information, but the prosecutor need not represent the

defendant’s interest by correcting the testimony in front

of the jury. That duty is one owed by defense counsel

to the defendant, namely, the duty to make strategic

choices about whetherto impeach a witness about testimony that counsel knows to be false or misleading.

Thus, the Appellate Court’s imposition of a duty on the
prosecutor to correct misleading testimony in front of

the jury is inconsistent with Brady and Napue, neither

of which imposes upon the prosecutor any duties that

are intended to replace the basic principles of our

adversarial system.

While the facts of the present case may seem like a

classic Napue scenario because there was misleading

testimony that the prosecutor did not correct—and that

is certainly what the defendant argues before this

court—it is not. In the present case, the prosecutor told

the defendant and the court the nature of his

agreements with Cordero and Campbell prior to their

testimony. This disclosure meant that the duty of the

prosecutor to correct false or misleading testimony as

set forth in Napue was never triggered. A prosecutor

may be found to have violated Napue following initial

disclosure only when the prosecutor’s subsequent

actions could mislead the jury. Examples of this include

the prosecutor relying on or using the false or misleading testimony, the prosecutor interfering with the

defendant’s attempt to use the disclosed information,

the prosecutor bolstering the credibility of the witness,

orthe prosecutor asking the witness questions intended

to mislead the jury.8 See footnote 6 of this concurring

opinion. None of those circumstances existed in the

present case. The Appellate Court, therefore, improperly concluded that the prosecutor acted improperly.

Accordingly, I concur in the judgment.

1 We granted the defendant’s petition for certification to appeal, limited

to two issues. See footnote 2 of the majority opinion.

2

I concede that if we read the certified question narrowly, it could be

interpreted to ask whether the Appellate Court properly applied the due

process analysis in State v. Williams, 204 Conn. 523, 540, 529 A.2d 653

(1987), to determine whether the defendant has proved that the prosecutor’s

violation under Napue was material. Even under that narrow reading, however, it is within the court’s discretion to rectify the Appellate Court’s incorrect application of Napue to the question of whether the prosecutor

committed an impropriety.

3 This court’s broad discretion to address issues within the scope of the

certified question is illustrated by the fact that even if a claim is not considered by the Appellate Court or briefed before this court, this court may

choose to address it, if the claim falls within the scope of the certified

question. McManus v. Commissioner of Environmental Protection, 229

Conn. 654, 661 n.6, 642 A.2d 1199 (1994).

4

I note that the state conceded at oral argument that it was raising the

issue of waiver as an alternative ground for affirmance. Iread that concession

to imply that the state conceded also that it raises the impropriety issue as

an alternative ground. This concession does not, however, preclude this

court from reaching the issue of whether an impropriety occurred, nor does

it release us from our obligation to do so. As I explain herein, we have a

duty to set forth the correct application of Brady and Napue to the facts

of the present case because otherwise the Appellate Court’s incorrect application will govern.

5 As the majority observes, the question of whether the testimony was

false or misleading is not at issue in this appeal, as the state concedes that

it was undisputed that the testimony was ‘‘potentially misleading.’’

6 The federal courts have explored at length the circumstances under

which a defendant will be deemed to have waived a claim that a prosecutor

improperly failed to correct false or misleading testimony. The general

rule is that ‘‘absent unusual circumstances, the right of the defendant to

disclosure by the prosecutor is deemed waived if defense counsel with

actual knowledge of the plea agreement or sentencing status information

chooses not to present such information to the jury.’’ (Footnote omitted.)

United States v.Iverson, 648 F.2d 737, 739 (D.C. Cir. 1981).But seeBelmontes
v. Brown, 414 F.3d 1094, 1115–16 (9th Cir. 2005), rev’d on other grounds

sub nom. Ayers v. Belmontes, 549 U.S. 7, 127 S. Ct. 469, 166 L. Ed. 2d

334 (2006).

‘‘When a criminal defendant, during his trial, has reason to believe that

perjured testimony was employed by the prosecution, he must impeach the

testimony at the trial, and cannot have it both ways. He cannot withhold

the evidence, gambling on an acquittal without it, and then later, after the

gamble fails, present such withheld evidence in a subsequent proceeding

. . . .’’ (Internal quotation marks omitted.) Evans v. United States, 408 F.2d

369, 370 (7th Cir. 1969). The presumption is that the defendant chose not to

challenge the false testimony for tactical reasons. United States v. MangualGarcia, 505 F.3d 1, 10–11 (1st Cir. 2007), cert. denied sub nom. VillanuevaRivera v. United States, 553 U.S. 1019, 128 S. Ct. 2081, 170 L. Ed. 2d 819

(2008). Accordingly, the defendant will be deemed to have waived the right

to argue on appeal that the prosecutor violated his right to due process by

failing to correct the false or misleading testimony. Id.

There are several factual circumstances that could lead a courtto conclude

that a defendant did not waive the claim, despite the defendant’s failure to

use the information provided by the prosecutor regarding the nature of

the agreements. For instance, ‘‘should defense counsel be precluded by

circumstances essentially beyond his control (e.g., inaccessibility at the time

of trial of the information or refusal of the trial court to permit inquiry into

the matter) from raising or pursuing the issue, the Giglio-Napue rule strictly

applies and due process mandates a new trial.’’ United States v. Iverson,

supra, 648 F.2d 739. These circumstances also include: the prosecutorrelying

on or using the false testimony; DeMarco v. United States, 928 F.2d 1074,

1076–77 (11th Cir. 1991); the prosecutor interfering with the defendant’s

attempts to impeach the witness by objecting to the questioning; Jenkins

v. Artuz, 294 F.3d 284, 294 (2d Cir. 2002); the prosecutor bolstering the

credibility of the witness, or asking questions of the witness that intentionally

misleads the jury; id.; and defense counsel choosing not to raise the issue

due to his own conflict of interest. Ross v. Heyne, 638 F.2d 979, 986 (7th

Cir. 1980) (defense counsel knew testimony denying plea agreement was

false because his law partner was witness’ defense attorney and defense

counsel, therefore, had conflict of interest). These circumstances are especially likely to preserve the due process violation claim when they are

combined with the defendant’s futile attempts to elicit the correct information. United States v. LaPage, 231 F.3d 488, 490, 492 (9th Cir. 2000), amended

by 271 F.3d 909 (9th Cir. 2001); United States v. Sanfilippo, 564 F.2d 176,

177 (5th Cir. 1977).

Because none of the above circumstances existed in the present case, I

conclude that the defendant waived the right to challenge the prosecutor’s

failure to correct the misleading testimony. I nonetheless reach the merits

of the issue because, in light of the Appellate Court’s incorrect analysis

under Brady and Napue, it is necessary to explain the correct application

of those decisions to the facts of the present case.

I emphasize, however, that the present case is a clear example of waiver.

On cross-examination, the defendant asked Cordero only two vague questions about whether he expected to receive any benefit from the government

for his testimony. When he responded that he did not, the defendant discontinued his questioning about this issue. The defendant did not ask Campbell

any questions about whether she expected to receive any benefit from her

testimony. The defendant had full knowledge of the agreements that the

prosecutor had with both of these witnesses, but chose not to raise the

issue of their misleading testimony at trial. Additionally, there were no

subsequent actions by the prosecutor or extraneous factors that might save

the claim. The prosecutor did not rely on or use the misleading testimony,

the prosecutor did not attempt to interfere with the defendant’s use of the

information about the agreements with Cordero and Campbell, and there

is no evidence that defense counsel had a conflict of interest that prevented

him from raising the issue. The presumption, then, in the present case, is

that the defendant chose not to raise the issue of Cordero’s and Campbell’s

misleading testimony at trial for tactical reasons.

7

I agree with the majority and the parties that the factors enumerated

in Williams are not relevant to the analysis of the defendant’s claim of

prosecutorial impropriety. Accordingly, I also agree that ‘‘if there is a violation of the standard set forth in Napue v. Illinois, [supra, 360 U.S. 269–71],

which requires that a prosecutor apprise the court when he or she knows

a witness is giving substantially misleading testimony, then this court should

apply the Napue standard in assessing whether there was harm.’’ See footnote 4 of the majority opinion.

8 Although the defendant does not appear to argue that the prosecutor

relied on the misleading testimony during redirect examination, and the
defendant does not claim that the prosecutor directly relied on the misleading testimony, the defendant claims that the prosecutor’s remarks during

closing argument capitalized on that testimony. Specifically, the defendant

claims that when a state’s witness has offered misleading testimony, a

general bolstering of the witness’ credibility by the prosecutor may result

in a due process violation. Even if I were to agree with the defendant’s

proposition, that would not help him in the present case.

As the Appellate Court noted in its opinion: ‘‘Although the state commented, generally, about the credibility of both witnesses during its closing

argument, the state did not suggest, at any point that either witness should

be believed on the ground that they had testified without the benefit of any

agreement with the state regarding their own pending cases. And, the jury

was made aware of both Cordero’s and Campbell’s status as charged accomplices through their direct testimony at the behest of the state. Additionally,

the court instructed the jury to carefully scrutinize their testimony on the

basis of this status.’’ State v. Jordan, supra, 135 Conn. App. 667–68. Viewing

the prosecutor’s comments in closing argument as a whole reveals that to

the extent that he claimed that the witnesses were credible, he did so on

the basis that their testimony was consistent with other testimony and

evidence presented at trial.

This is particularly highlighted by the fact that he argued that Campbell’s

testimony was credible, whereas he did not make the same claim about

Cordero’s testimony. For instance, although the prosecutor argued that

Cordero’s testimony placed the defendant at the scene of the crime, the

prosecutor also somewhat discredited the testimony of Cordero by saying

three times that it did not make much sense. By contrast, the prosecutor

said that Campbell’s credibility was bolstered because her descriptions of

events were consistent with how other witnesses had testified. With respect

to her descriptions of events, he summarized: ‘‘If you can rely on the details

she gives about those things you can rely on the details she gives about

everything.’’ At the same time, even though he argued that Campbell was

credible, he also encouraged the jury to look critically at her testimony.

Accordingly, rather than generally bolstering the credibility of the witnesses,

the prosecutor asked the jury to draw inferences based on the evidence

presented at trial.